Death Penalty In India: In The Books, But Rarely Applied

A decision by India’s Supreme Court to uphold the death penalty sentence imposed upon Mohammad Ajmal Amir Qassab -- the Pakistani gunman who was convicted for his role in the 2008 terror attacks in Mumbai which killed 166 people -- has again raised the subject of India’s use of capital punishment.

"In view of the nature of the gravity of [Qassab’s] crime and the fact that he participated in waging war against [India], we have no option but to uphold his death penalty," Supreme Court Justices Aftab Alam and C.K. Prasad stated.

Convicted of mass murder, terrorism and other offenses in May 2010, Qassab’s first appeal was previously rejected in February 2011 by Mumbai’s High Court.

Qassab is the only surviving gunman from that massacre.

While India has the death penalty in the books, very few executions have actually been carried out. Soutik Biswas, a correspondent for BBC, indicated that only two convicts have been hung in the 21st century, while the overwhelming majority of ‘death row’ convicts typically serve out life sentences in prison.

For example, Mohammad Afzal Guru, who was convicted of an attack on India’s parliament in December 2001 which killed seven people, had his death sentence upheld by the Supreme Court in 2004 – he is still alive in prison.

However, given the magnitude of the Mumbai attacks, many in India would like to see Qassab executed.

Mukhtar Abbas Naqvi, a spokesman for the nationalist, right-wing opposition Bharatiya Janata Party (BJP) demanded that Qassab face the hangman with "no delay.”

"Those who wage war against the country and kill innocents deserve no mercy," he added.

Even if many Indians favor the execution of Qassab, the movement for a ban on the death penalty has accelerated in much of the rest of the world.

Amnesty International stated that only 21 nations carried out executions last year, while 68 imposed the death penalty. All told, about two-thirds of the world’s countries have abolished the ultimate punishment.

(China, Iran, Iraq and Saudi Arabia continue to execute people at an alarming rate, Amnesty noted).

In 1983, the Supreme Court of India specified that the death penalty should only be carried out in the “rarest of rare cases.”

Under the letter of the law, the death penalty may be imposed for those who are convicted of: murder; gang robbery that leads to murder; abetting the suicide of a child or insane person; waging war against the government; and abetting mutiny by a member of the armed forces.

Now, some leading Indian jurists have explicitly called on the courts to eliminate the death penalty from Indian jurisprudence.

Retired Justice A.P. Shah told the Times of India newspaper: “India should join such nations [that have abolished capital punishment] as there is enough reason to believe that the legal safeguards aimed at avoiding a miscarriage of capital punishment have failed to deliver.”

Shah added: “Public opinion in India can no longer ignore the global movement in favor of abolition of the death penalty. A total of 130 out of 192 UN member states have abolished the death penalty in law or practice -- India is one of the countries that retains the death penalty but rarely executes people. It's time we accepted that capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure.”

According to the Rediff news site, India currently has 309 prisoners on death row (versus more than 3,200 in the United States, whose population is only one-fourth of India’s).

A disproportionate number (80) of India’s convicted criminals are languishing in prisons in the state of Bihar, one of the poorest, backward, and lawless parts of the country.

If and when Qassab has to prematurely meet his Maker, he will be hanged, not shot. The Supreme Court of India ruled in 1983 that hanging did not constitute an act of “torture, barbarity, humiliation or degradation.”